State of Utah, v. Jiminez

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Joe Jiminez,
Defendant and Appellant.

Case No. 981129-CA

F I L E D
(November 27, 1998)
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Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
G. Fred Metos, Salt Lake City, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

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Before Judges Davis, Billings, and Greenwood.

BILLINGS, Judge:

Appellant Joe Jiminez (defendant), appeals his conviction of rape of a child, a first degree felony, in violation of Utah Code Ann. 76-5-402.1 (1995). We affirm.

I. Sufficiency of the Evidence to Support Verdict

Defendant claims there was insufficient evidence to support the jury's guilty verdict. In reviewing a jury's verdict based on a claim of insufficient evidence, we owe "broad deference to the fact finder, [and our] power to review a jury verdict challenged on grounds of insufficient evidence is limited." State v. Souza, 846 P.2d 1313, 1322 (Utah Ct. App. 1993). We review the evidence and all reasonable inferences drawn from that evidence in the light most favorable to the jury's verdict and reverse only if that evidence is so "'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which [he] was convicted.'" Id. at 1322 (citation omitted). Further, in reviewing defendant's claim, we will not "weigh conflicting evidence, nor substitute [our] judgment on the credibility of the witnesses for that of the jury." State v. Wright, 893 P.2d 1113, 1117 (Utah Ct. App. 1995). Rather, "[i]n a jury trial, 'the jury serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.'" State v. Baker, 348 Utah Adv. Rep. 30, 34 (Utah Ct. App. 1998) (quoting State v. Workman, 852 P.2d 981, 984 (Utah 1993)).

In this case, contradictory evidence was presented to the jury. The victim presented a version of what occurred which supports defendant's conviction. Her version was corroborated by other witnesses. Defendant testified to a very different version of what occurred, denying any improper conduct. His version was also corroborated by other witnesses. The jury chose to believe the victim's and not defendant's version of events, and returned a verdict of guilty of rape of a child.

Applying the principles articulated above to the facts of this case, we conclude it is not for us to decide between defendant's and the victim's version of events or weigh which version is the more credible. See Wright, 893 P.2d at 1117. We therefore conclude defendant has not met his burden of proving that the evidence was so "'inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.'" Souza, 846 P.2d at 1322 (citation omitted).
 

II. Newly Discovered Evidence

Defendant's second claim is that the trial court erred in not granting his Motion to Arrest Judgment or Motion for a New Trial based on newly discovered evidence. The evidence was an alleged statement by the victim to her father (and overheard by her brother) indicating that she fabricated the claim that defendant had raped her.

Our review of the trial court's decision to deny defendant a new trial "focuses upon whether the denial constitutes an abuse of discretion." State v. James, 819 P.2d 781, 793 (Utah 1991) (citing State v. Williams, 712 P.2d 220, 222 (Utah 1985)). We grant the trial court a wide range of discretion, and will assume that the trial court exercised proper discretion "unless the record clearly shows the contrary." Id. (citing Williams, 712 P.2d at 222 and Logan City v. Carlsen, 799 P.2d 224, 225 (Utah Ct. App. 1990)).

In James, the Utah Supreme Court outlined a three factor test that must be satisfied for newly discovered evidence to warrant a new trial. "(1) It must be such as could not with reasonable diligence have been discovered and produced at trial; (2) it must not be merely cumulative; (3) it must be such as to render a different result probable on the retrial of the case." Id. at 793 (citation omitted) (quoting State v. Gellatly, 22 Utah 2d 149, 153, 449 P.2d 993, 996 (1969)).

Applying the James factors outlined above to the facts of this case, we conclude the trial court did not abuse its discretion in denying defendant's motion for a new trial. We agree with the State that defendant did not exercise due diligence in this case. Defendant was aware of the "new" evidence before trial. The victim's father testified that he told defendant about the victim's recantation three weeks after it happened. Furthermore, the victim's father testified that defendant seemed to fully realize he was facing a trial, and by inference, must have known of the importance of the victim's allegedly recanted statement. It would not have been an unreasonable burden for defense counsel to have interviewed defendant as well as the victim's father to discover this evidence.

As to the final James factor, the trial court concluded and we agree that a different result was improbable, since the witnesses who came forward lacked credibility. Thus, a threshold credibility assessment was properly applied under prong three of the James test by the trial court.

We therefore conclude that the trial court did not abuse its discretion in denying defendant's motion for a new trial.
 

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Judith M. Billings, Judge -----

WE CONCUR:
 

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James Z. Davis, Presiding Judge
 

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Pamela T. Greenwood, Judge